Applicant Name: ????? Application Receipt Date: 2011/08/10 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant requests the following changes to his DD Form 214, in effect, for item #24 to read: General; item #26 to read: LBK; and item #28 to read: Completion of Required Active Service. He states, in effect, that he believes his record to be in error or unjust because he was given an offer by the Government to resign, but only PRIOR to the published Article 32 findings; that the Article 32 investigating officer (IO) recommended “the charges against the accused be dismissed”; that the IO states that “my Right to Financial Privacy may have been violated by CID and the bank”; and that the Government was aware that his wife was pregnant with their second child at the time of the Article 32 investigation, which added to pressure tactics to get him to resign. II. Were Proper Discharge and Separation Authority procedures followed? Tender Offer: NA See Attachments: Legal Medical Minority Opinion Exhibits III. Discharge Under Review Unit CDR Recommended Discharge: Date: 090310 Discharge Received: Date: 090520 Chapter: 3-13 AR: 600-8-24 Reason: In Lieu of Trial by Court-Martial RE: SPD: DFS Unit/Location: HHC, USAREUR/7th Army, Germany Time Lost: None Article 15s (Charges/Dates/Punishment): None Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 35 Current ENL Date: 040401 Current ENL Term: Indef Years DD From 214, block 12a, dated entered AD this period Current ENL Service: 05 Yrs, 01 Mos, 20 Days ????? Total Service: 19 Yrs, 11 Mos, 27 Days ????? Previous Discharges: USAR (890524-890814) ADT (890815-891209) / UNC USAR (891210-921115) ADT (921116-930407) / HD USAR (930408-960624) ADT (960625-970322) / HD USAR (970323-990910) ADT (990911-030911) / HD USAR (030913-040330) Highest Grade: O-4 Performance Ratings Available: Yes No MOS: 38A (Civil Affairs) GT: NA EDU: BS Overseas: SWA, Germany Combat: Iraq (070910-080109) Decorations/Awards: ARCOM; JSAM; AAM; NDSM-2; AFEM; ICM-CS; ASR; OSR-2; ARCOTR-6; AFRM-M Device; NATO MDL V. Post-Discharge Activity City, State: Post Service Accomplishments: None VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 25 November 2008, the applicant was charged with larceny of per diem of a value of about $96,000 (040401-060331); with intent to deceive, signed and submitted an official document to DFAS, to wit: DD Form 1351-2, Travel Voucher, which record was false in that it claimed $4,000 for lodging expenses that he did not incur and was then known by him to be so false (040401-060331); and with intent to deceive, signed and submitted an official document to DFAS, to wit: a rental agreement with Ms. L for property at Ladenburg, Germany, which record was totally false in that he never entered into a rental agreement with said property and was then known by him to be so false (040401-060331). On 29 January 2009, the applicant consulted with legal counsel and voluntarily tendered his resignation from the Army in writing, under the provisions of Chapter 3, AR 600-8-24, for the good of the Service in lieu of trial by a general court-martial or a board of officers. The applicant indicated he understood that he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits. The chain of command recommended approval of the resignation for the good of the Service with issuance of an under other than honorable conditions discharge. On an unknown date, the Ad Hoc Review Board recommended that the applicant’s resignation be accepted with issuance of an under other than honorable conditions discharge. On 23 April 2009, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Army Ad Hoc Review Board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. b. Legal Basis for Separation: Army regulation 600-8-24 prescribes the policies and procedures governing the transfer and discharge of Army officer personnel. Chapter 3, paragraph 3-13 outlines the rules for processing requests for resignation for the good of the Service in lieu of trial by a general court-martial. c. Response to Issues, Recommendation and Rationale: After a careful review of the entire applicant’s military records during the term of service under review and the issue and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge. The evidence of record shows that the applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge. The applicant voluntarily requested resignation in lieu of trial by general court-martial under the provisions of Chapter 3, AR 600-8-24. The appropriate authority approved the applicant's request and issuance of an under other than honorable conditions characterization of service. The analyst concluded that by the misconduct, the applicant diminished the overall quality of his service below that meriting a fully honorable or general, under honorable conditions discharge. The applicant requests a change to the narrative reason for separation. However, the narrative reason for separation is governed by specific directives. The applicant was discharged under the provisions of Chapter 3, paragraph 3-13, AR 600-8-24. The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trail by Court-Martial," the separation code is "DFS." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28, separation code, entered in block 26, and RE Code, entered in block 27 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends he was offered to resign by the Government prior to the Article 32 investigating officer's reported findings. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his contention. Moreover, the applicant's records show that while the court-martial charges were preferred with a view toward trial by a general court-martial, the applicant voluntarily tendered his resignation indicating he did not desire to appear before a court-martial or board of officers, and that he had not been subjected to coercion with respect to his resignation and that he had been fully advised and counseled in the matter by his civilian counsel on 20 January 2009. On 10 March 2009, the GCMCA recommended approval stating that the evidence supporting the charged offenses is strong, but not irrefutable, with a service as under other than honorable characterization of service. The analyst found no evidence of arbitrary or capricious actions by the command. The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. In view of the foregoing, the analyst determined that the reason for discharge and the characterization of service remain both, proper and equitable and recommends to the Board to deny relief. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 21 March 2012 Location: Washington, D.C. Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: DD Form 149, dated 110729; DD Form 457, IO Report, dated 090209; Med Attest, dated 090113 VIII. Board Discussion, Determination, and Recommendation After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief. IX. Board Decision Board Vote: Character - Change 2 No change 3 Reason - Change 0 No change 5 (Board member names available upon request) X. Board Action Directed Issue a new DD Form 214 Change Characterization to: Change Reason to: NA Other: NA RE Code: Grade Restoration: No Yes Grade: NA XI. Certification Signature Approval Authority: EDGAR J. YANGER Colonel, U.S. Army President, Army Discharge Review Board BONITA E. TROTMAN Lieutenant Colonel, U. S. Army Secretary Recorder Legend: AWOL Absent Without Leave GCM General Court Martial NA Not applicable SCM Summary Court Martial BCD Bad Conduct Discharge GD General Discharge NIF Not in the file SPCM Special Court Martial CG Company Grade Article 15 HD Honorable Discharge OAD Ordered to Active Duty UNC Uncharacterized Discharge DD Dishonorable Discharge HS High School Graduate OMPF Official Military Personnel File UOTH Under Other Than Honorable FG Field Grade Article 15 IADT Initial Active Duty Training RE Reentry Code Conditions ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20110016426 ______________________________________________________________________________ Page 4 of 4 pages